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The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement

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The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement Journal of Criminal Law and Criminology Volume 104 Article 3 Issue 4 Symposium On Guns In America Fall 2015 The oP sse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement David B. Kopel Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons Recommended Citation David B. Kopel, The Posse Comitatus And The Office Of erSh iff: Armed Citizens Summoned To The Aid Of Law Enforcement, 104 J. Crim. L. & Criminology 761 (2015). https://scholarlycommons.law.northwestern.edu/jclc/vol104/iss4/3 This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/15/10404-0761 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 104, No. 4 Copyright © 2015 by Northwestern University School of Law Printed in U.S.A. THE POSSE COMITATUS AND THE OFFICE OF SHERIFF: ARMED CITIZENS SUMMONED TO THE AID OF LAW ENFORCEMENT DAVID B. KOPEL* Posse comitatus is the legal power of sheriffs and other officials to summon armed citizens to aid in keeping the peace. The posse comitatus can be traced back at least as far as the reign of Alfred the Great in ninth- century England. The institution thrives today in the United States; a study of Colorado finds many county sheriffs have active posses. Like the law of the posse comitatus, the law of the office of sheriff has been remarkably stable for over a millennium. This Article presents the history and law of the posse comitatus and the office of sheriff from their earliest days to the present. This Article also describes how the past and present of the posse comitatus can be used in interpretation of the Second Amendment. * Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law. Research Director, Independence Institute, Denver, Colorado. Associate Policy Analyst, Cato Institute, Washington, D.C. Professor Kopel is the author of ninety scholarly journal articles and fifteen books, including the first law school textbook on the Second Amendment: NICHOLAS J. JOHNSON, DAVID B. KOPEL, GEORGE A. MOCSARY & MICHAEL P. O’SHEA, FIREARMS LAW AND THE SECOND AMENDMENT (2012). Kopel’s website is http://www.davekopel.org. The author would like to thank Christopher Lee Runyan, Justin Miller, Alycia Wilson, and Sean O’Connor for research assistance. All errors in this Article are Felix Frankfurter’s fault. See Orin Kerr, Because We Thought the Errors in Your Article Were Cass Sunstein’s Fault, VOLOKH CONSPIRACY (Sept. 6, 2010, 10:18 PM), http://www.volokh.com/2010/09/06/because-we-thought-the-errors-in-your-article-were- cass-sunsteins-fault/ (last visited Dec. 26, 2013), archived at http://perma.cc/FDY4-D7A3; Others’ Mistakes, Maybe, 17 GREEN BAG 2D 128 (2014) (discussing Kopel’s use of footnote * to identify responsibility for errors). 761 762 KOPEL [Vol. 104 TABLE OF CONTENTS INTRODUCTION .......................................................................................... 763 I. THE CONSTITUTIONAL OFFICE OF SHERIFF ........................................... 765 A. Anglo-Saxon Liberties .............................................................. 765 B. The Anglo-Saxon Sheriff .......................................................... 769 C. The Sheriff’s Office from the Norman Conquest to the Fourteenth Century ................................................................. 774 1. Sheriffs’ Courts ................................................................... 775 2. Election of Sheriffs ............................................................. 776 3. Sheriff’s Oath of Office and Bond ...................................... 781 D. The English Office of Sheriff in the Seventeenth Century and Thereafter ................................................................................ 781 1. Autonomous and Indivisible ............................................... 782 2. Modern Role in the United Kingdom ................................. 783 E. The Sheriff in America .............................................................. 784 II. THE POSSE COMITATUS FOR THE KEEPER OF THE PEACE...................... 787 A. Posse Comitatus in England ...................................................... 789 B. Posse Comitatus in Colonial America and the Revolution ....... 792 C. After Independence ................................................................... 793 D. Posse Comitatus and the Civil War ........................................... 798 1. Before the War .................................................................... 798 2. After the War ...................................................................... 800 E. Posse Comitatus in Late Nineteenth Century America to the Present ..................................................................................... 802 F. Who Is Subject to Posse Comitatus Duty? ................................ 804 G. Arms of the Posse Comitatus .................................................... 806 III. COLORADO SHERIFFS AND THEIR POSSES .......................................... 808 A. Posse Comitatus in Crime Emergencies ................................... 812 1. Pitkin Sheriff’s Office ......................................................... 812 2. Hinsdale Sheriff’s Office .................................................... 813 3. Rio Blanco Sheriff’s Office ................................................ 815 4. Jackson Sheriff’s Office ...................................................... 816 5. Larimer Sheriff’s Office ..................................................... 816 6. Morgan Sheriff’s Office ...................................................... 817 B. Posse Comitatus in Low-Risk Situations .................................. 817 C. Trained Posse Comitatus in Forcible Law Enforcement Situations ................................................................................ 818 1. Alamosa County Sheriff’s Office ....................................... 818 2. Baca County Sheriff’s Office .............................................. 818 3. Custer County Sheriff’s Office ........................................... 819 4. Delta County Sheriff’s Office ............................................. 819 2015] SHERIFFS AND THEIR POSSE COMITATUS 763 5. Douglas County Sheriff’s Office ........................................ 819 6. Elbert County Sheriff’s Office ............................................ 819 7. Hinsdale County Sheriff’s Office ....................................... 820 8. Kiowa County Sheriff’s Office ........................................... 820 9. Lincoln County Sheriff’s Office ......................................... 820 10. Logan County Sheriff’s Office ......................................... 821 11. Montezuma County Sheriff’s Office................................. 821 12. Morgan County Sheriff’s Office ....................................... 821 13. Prowers County Sheriff’s Office....................................... 821 D. The Colorado Mounted Rangers ............................................... 821 IV. POSSE COMITATUS: THE RIGHT—AND DUTY—TO KEEP AND BEAR ARMS .................. 823 CONCLUSION ............................................................................................. 828 APPENDIX .................................................................................................. 830 INTRODUCTION Most people know that in the American frontier West, sheriffs sometimes summoned “the posse” to assist in keeping the peace. The sheriff’s posse comitatus authority to call forth armed citizens to aid law enforcement is deeply rooted in the Anglo-American legal system, originating no later than the ninth century. The posse comitatus power thrives in the twenty-first century United States. Sheriffs today use their posse comitatus power frequently, sometimes daily. This Article describes the historical roots, the modern uses, and the Second Amendment implications of posse comitatus. The posse comitatus power does not belong exclusively to sheriffs, but the power was originally created for them, and they remain its most frequent users. Accordingly, Part I of this Article describes the origins and history of the office of sheriff. This Part explains how the nature of the Anglo-Saxon office provided the foundation for the American sheriff’s role as a constitutional officer who is elected directly by the people and enjoys great independence in the performance of his duties. While police chiefs are appointed to their place within (and not at the top of) the chain of command of a city government, sheriffs are autonomous. Part II explicates the law and history of the posse comitatus from Anglo-Saxon times to the present. The posse comitatus law of the twenty- first century United States is essentially the same as the posse comitatus law of England during the ninth century. The sheriff in carrying out his peacekeeping duty may summon to his aid the able-bodied adults of the 764 KOPEL [Vol. 104 county. He has complete discretion about whom to summon and how the persons summoned shall be armed. Part III provides a case study of the posse comitatus in modern Colorado. Posses play numerous roles in Colorado. They have thwarted the escapes of criminals, including serial killer Ted Bundy. They also function as a citizen volunteer corps on a regular, structured basis;
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